OA119332013

On 23 rd June 2014 Designated Judge of the First-tier Tribunal Zucker gave permission to the appellant to appeal against the determination of Judge of the First-tier Tribunal Devlin who dismissed the appeal on immigration and human rights grounds against the decision of the respondent on 16 th May 2013 to refuse entry clearance as a partner under the provisions of Appendix FM and FM-SE of the Immigration Rules.

At paragraph 129 of their judgement the Court of Appeal also made reference to the conclusions of the High Court in R (On the application of) Nagre [2013] EWHC 720 (Admin) by concluding that there was not much utility in imposing a further, intermediary, test before considering a further Article 8 claim where the particular requirements of the Rules could not be fulfilled. This conclusion undermined the decision of the Upper Tribunal in Gulshan (Article 8 � new Rules � correct approach) [2013] UKUT 640 (IAC) .

Ms Johnstone argued that the Court of Appeal had endorsed the application of the �18,600 maintenance minimum requirement and, in that respect, the Rules were a complete code. She also pointed out that, as the decision had to be made on the circumstances appertaining at the time of the respondent�s decision on 16 th May 2013, the prospective future earnings and savings claimed by the sponsor could not be taken into consideration.

The judge then found (paragraph 65) that, if it were not for the judgment of Blake J and the determination of the Upper Tribunal Gulshan, he would have found that the appellant had failed to establish a good arguable case for consideration of Article 8 issues outside the Rules. Although that approach is now wrong having regard to the decision of the Court of Appeal in MM , the judge�s actual consideration of Article 8 outside the Immigration Rules is in line with the decision of the Court of Appeal. Thus, the judge�s approach to Article 8 issues is not, I conclude, wrong in a material respect.

In all the circumstances I have reached the conclusion that, despite the change in approach to an Article 8 claim required following the Court of Appeal decision in MM, the determination does not show that the judge made a material error on a point of law. It can be said that he reached a conclusion about proportionality under Article 8 which would have been the same even if he had been aware of the change of approach to consideration of such issues.